RAJKUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Three persons, namely, Ajay Kumar, Rajkumar and Ravindra Kumar Jam have moved separate applications under Section 439 Cr.P.C. for grant of bail. They have been detained under the provisions of Foreign Exchange Regulations Act, 1973 (hereinafter referred to as the FERA). The facts which have come out are that on 1-7-1990 Ajay Kumar and Ravindra Kumar who belong to Delhi came to Churn in Rajasthan and Stayed with the third accused Rajkumar Ratnesh. On the next day i.e. on 2nd July, 1990 all the three were in Maruti Car No. DDD 5372 when the police stopped them and conducted a search. Traveller cheques, currency of other countries and Rs. 67,000/- in Indian currency were recovered from these persons. The details of the amount from the each person has been separately noted. These persons were arrested and as the case was under the FERA and accused were handed over to the Director of Enforcement, who stated investigation in the case. These petitioners moved applications for grant of bail before the Sessions Judge, Jaipur City, Jaipur and their bail applications were refused. Hence they have approached this Court.

(2.) The main contention of the learned counsel for the petitioners is that under Section 56 of the FERA the maximum punishment is 7 years and in cases where the amount recovered is less than Rs. 1,00,000/- the punishment prescribed is 3 years and offences punishable upto 3 years are bailable according to the Schedule to the Code of Criminal Procedure. It is contended that investigation and trial will take time and the petitioners are not required for any interrogation as they have been sent to judicial custody.

(3.) It is also contended that the cognizance of an offence under FERA can be taken by a Magistrate upon a complaint in writing by the Directorate of Enforcement or any other officer directed in this behalf and till such time as the complaint is made the person against whom investigation is pending cannot be detained in custody. Under Section 62 of the FERA an offence punishable under section 56 of the Act has been made noncognizable and on this basis it is contended that the petitioners cannot be detained in custody as there is no provision in the Code of Criminal Procedure for the detention of an accused before filing of a complaint. It is contended that section 309 Cr.P.C. is not applicable and without a complaint, detention under Section 167 Cr.P.C. cannot be made.